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Whisnant v. United States


    Citation. Whisnant v. United States, 400 F.3d 1177, 2005 U.S. App. LEXIS 4113 (9th Cir. Wash. Mar. 11, 2005)

    Synopsis of Rule of Law. Courts apply a two-part test for determining the applicability of the discretionary function exception to the Federal Tort Claims Act (“FTCA”).  Courts must ask: (1) Whether the challenged action was a discretionary one—i.e., governed by mandatory statute, policy, or regulation.  If not, it is not excepted.  (2) Whether the challenged action is of the type Congress meant to protect—i.e., whether the action involves a decision susceptible to social, economic, or political policy analysis.  It is the government’s burden to demonstrate the applicability of the discretionary function exception to the FTCA.

     

    Facts. Plaintiff Whisnant worked for a company that provided seafood to the commissary of a Naval base.  The commissary is operated by a government agency, DeCA.  DeCA regulations require periodic safety inspections, but DeCA employees are allowed to decide how and when to conduct such safety inspections.  The base contracts out maintenance work to Johnson Controls, whose inspections showed that mold had accumulated in the meat department of the commissary.  Over the next three years, plaintiff among others allegedly became ill due to the toxic molds, resulting in the government closing the meat department.  He allegedly contracted pneumonia, headaches, cough, and other health problems and sued the government under the Federal Tort Claims Act (“FTCA”) for negligence in allowing workers to come into contact with the mold despite known health hazards.  The government moved to dismiss on the ground that plaintiff’s suit was barred by the discretionary function exception to the FTCA, which provides that the FTCA shall not apply to “any claim based upon the exercise of, or failure to exercise, a discretionary function.”  The district court granted the motion to dismiss.  The plaintiff appealed and the Ninth Circuit reversed.

     

    Issue. Whether the discretionary function exception bars an FTCA action against the government in failing to follow through on safety procedures designed to safeguard the health of employees.

     

    Held. No.  The Supreme Court has prescribed a two-part test for determining the applicability of the discretionary function exception.  Courts must ask: (1) Whether the challenged action was a discretionary one—i.e., governed by mandatory statute, policy, or regulation.  If not, it is not excepted.  (2) Whether the challenged action is of the type Congress meant to protect—i.e., whether the action involves a decision susceptible to social, economic, or political policy analysis.  It is the government’s burden to demonstrate the applicability of the discretionary function exception.  Applying the first prong to plaintiff’s case, the court found that no statute, policy, or regulation prescribed the specific manner in which the commissary was to be inspected or the course of conduct for addressing mold.  Thus, the dispute in this case turned on the second prong.  The court found that precedent has established that the design of a course of governmental action is shielded by the exception, whereas the implementation of that course of action is not.  In addition, matters of scientific or professional judgment (particularly regarding safety) are rarely considered to be susceptible to social, economic, or political policy.  The court reasoned that the plaintiff did not allege that the government was negligent in designing its safety inspection procedures; rather, that the government was negligent in following through on those procedures to safeguard the health of employees.  Accordingly, plaintiff’s action was not barred by the discretionary function exception because neither prong was met.

     

    Discussion. The FTCA essentially waives the federal government’s immunity from tort suits, but does not do so completely, as this case demonstrates.  Congress retained federal immunity for discretionary functions, which “marks the boundary between Congress’ willingness to impose tort liability on United States and its desire to protect certain governmental activities from exposure to suit by private individuals.”  The exception prevents judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy.


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